**2.1 Contract of sale of goods**

*Banking and Finance*

Acts have been adopted till date3

place in any sales contract.

contract.

business transactions within its contracting states [2].

right quality, quantity, description and packaging.

goals. To effectively carry out the piece-meal harmonisation of the business laws of member states, specifically through the elaboration of uniform laws, nine Uniform

examine the Uniform Act on General Commercial Law (UAGCL), with respect to its provisions governing sales contracts. Thus, the principal concern of this paper is to critically test the application of the UAGCL to barter-like transactions. The focus on the OHADA business law is to test its functionality in achieving its predictability of

The rules on the conformity of goods are not only an integral part of sales law, but also an indispensable obligation by the seller by being inextricably linked to his obligation to deliver the goods. This may explain why 'goods' are the very subject matter of a sales contract, and the rules on conformity are what help define this subject matter. Forming part of the economic and legal rights of the buyer, the latter relies on and ascertains the seller's obligation to deliver the goods in conformity with the contract specifications. This right consists in the delivering of goods of

Consequently, any breach of this obligation would entitle the buyer to establish proof. In this regard, many buyers will base their complaints on defects of conformity of the goods, allege a breach, and invoke remedies. It is important therefore, that there be fairly clear legal rules, particularly those applied by default, that are capable of allocating risks, thereby producing legal certainty and possibly reducing litigation. The burden of proof includes the burden of adducing the relevant evidence and the burden of persuasion. The reliance provision is, in other words, an exception to the buyer's entitlement to the goods fit for a particular purpose, and the burden of proof of the preconditions for that exception lies with the seller. Without these rules, it would often be impossible to say what it is that the seller has agreed to deliver. However, the inevitably broad nature of these rules, together with their considerable conceptual and practical significance, still makes them one of the most frequently litigated issues. All this leads to the conformity rules occupying a central

From the foregoing, the issue of the concept of conformity should be addressed with an open mind because it is dynamic and amorphous. This explains why this study will illustrate that the limits of conformity should not be guided by the distinction between physical and non-physical characteristics of the goods. Other conceptual tools for marking this boundary will be explored in consideration of other parameters irrespective of the intent of the parties as evident in their agreed

With this in mind, this study seeks in the first place to take a critical look at the rules on conformity in Article 255 of the OHADA Uniform Act on General Commercial Law (UAGCL). The primary objective therefore is to make an expository study of the concept of "conformity" as the basis of the seller's duty by showing its limits in consideration to other components. It follows with a critical examination of the UAGCL's approach in allocating the burden of proof of lack of conformity of the goods to the contractual stipulations as agreed by the parties. The study also adopts a critical and analytical approach in interpreting the provisions of the Uniform Act and of foreign instruments regulating sale of goods contracts.

<sup>3</sup> The following Uniform Acts are already applicable in Member States: Commercial Companies and Economic Interest Groupings, Law of Securities, Simplified Recovery Procedures and Measures of Execution, Collective Proceedings for Wiping –off Debts, Arbitration Law, Accounting Law, and Law of Co-operatives Carriage of Goods by Road. Two other Uniform Acts have been enacted and adopted by

the Council of Ministers but are still inapplicable, to wit; Consumer Law and Contract Law.

. Our interest being sale of goods contract, we shall

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'Goods' form the subject-matter of contracts of sale of goods between the seller and the buyer. The Uniform does not provide any definition to 'goods' as the case under the CISG4 . Nor is it possible to deduce the meaning of the term by analysing different language versions of the statute. However, from a cursory reading of the Act, a restrictive meaning could be inferred as its provisions basically apply only to moveable tangible goods.

Reference can be made to the Uniform Act's Scope and General Provisions. In particular, Article 234 (a) provides that "the provisions of this shall apply to contracts of sale goods", whereas Articles 235 and 236 restrict the ambit of the Act and by implication, the ambit of 'goods'. By inference from the restrictions imposed by Article 236 UAGCL, it may be understood that the term 'goods' is fairly not extensive, indeed, virtually not all-embracing. It clearly excludes to a greater extent non-physical items, such as electricity, negotiable instruments, and company shares, which are technically 'things in action' or incorporeal movables and so are excluded by the plain words of Article 236. Similarly, items of 'intellectual property' such as copyrights, patents and trademarks are not corporeal movables and so fall outside the definition, although of course goods may exist, which embody these intellectual property rights

Even though under the Uniform Act, the notion of 'goods' serves to quantify the main obligation of the seller contained in Article 250, which requires that '… the seller must deliver the 'goods' … as required by the contract and this Uniform Act', consideration must be given to the type or nature of goods.

The reason which may be advanced for dismissing intangible or immovable goods from the scope of the OHADA Uniform Act could be that even though these are assets available for trade, they can only be disposed by way of trade or security and not possibly to be transferred physically to another party. The absolute interest in such types of goods may be disposed of outright or may be made the subject of security. Since by virtue of Article 250 para. 1 UAGCL, the main duty of the seller under the contract of sale is to deliver the goods to the buyer, what matters here is the physical transferability of the goods and not necessarily the transfer of a legitimate interest in the goods. The peculiar consideration here does not lie on the identification of the type of goods but rather on the physical segregation and ownership of it. Only in this situation is segregation both possible and necessary to identify the subject of the transfer obligation of the seller under the Uniform Act.
